Allen v. Lowndes County Sheriff Dept. et al (INMATE2)

Filing 5

RECOMMENDATION of the Magistrate Judge that: (1) plaintiff's claims against the Lowndes County Sheriff's Department be dismissed with prejudice prior to service; (2) the Lowndes County Sheriff's Department be dismissed as a party to this complaint; (3) this case with respect to the remaining defendants be referred back to the Magistrate Judge. Objections to R&R due by 2/14/2007. Signed by Judge Wallace Capel Jr. on 2/2/07. (sl, )

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Allen v. Lowndes County Sheriff Dept. et al (INMATE2) Doc. 5 Case 2:07-cv-00090-ID-WC Document 5 Filed 02/02/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ______________________________ R O B E R T LEE ALLEN P l a in tif f , v. L O W N D E S COUNTY SHERIFF D E P T ., et al., D e f e n d a n ts . ______________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , Robert Allen ["Allen"], files this 42 U.S.C. 1983 action, alleging that rig h ts , privileges, or immunities afforded him under the Constitution or laws of the United S ta te s are being abridged by the conduct and actions of Defendants. Upon review of the c o m p la in t, the court concludes that dismissal of the Lowndes County Sheriff's Department p rio r to service of process is appropriate under 28 U.S.C. 1915(e)(2)(B).1 I . DISCUSSION A lle n names as a defendant the Lowndes County Sheriff's Department. The Lowndes C o u n ty Sheriff's Department is not a legal entity and, therefore, is not subject to suit or lia b ility under 1983. Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir. 1992). In light of the * * * * * 2:07-CV-90-ID (WO) A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2)(B)(i)-(iii). 1 Dockets.Justia.com Case 2:07-cv-00090-ID-WC Document 5 Filed 02/02/2007 Page 2 of 3 f o r e g o in g , the court concludes that Allen's claims against this defendant are due to be d is m is s e d . Id. II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's claims against the Lowndes County Sheriff's Department be D IS M IS S E D with prejudice prior to service of process pursuant to the provisions of 28 U .S .C . 1915(e)(2)(B)(i); 2 . The Lowndes County Sheriff's Department be DISMISSED as a party to this c o m p lain t; 3 . This case with respect to the remaining defendants be referred back to the u n d e rs ig n e d for additional proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before February 14, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District 2 Case 2:07-cv-00090-ID-WC Document 5 Filed 02/02/2007 Page 3 of 3 C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 2 n d day of February 2007. /s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 3

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